Saturday, March 15, 2008

Amended complaint filed in Andersen v. Atlantic class action

Tanya Andersen has filed her amended complaint in her class action, Andersen v. Atlantic.

The 109-page document provides a detailed description of some of the RIAA abuses, and contains 18 claims for relief, including Federal and State RICO claims, negligence, intentional infliction of emotional distress, abuse of process, and fraud.

The suit targets the record companies, MediaSentry, Settlement Support Center LLC, and the RIAA.

The complaint begins:

1.1 For nearly three years of her life, Tanya Andersen and her young daughter were subjected to an outrageous series of baseless accusations and unrelenting threats of financial ruin. The world’s four major recording studios had devised an illegal enterprise intent on maintaining their virtually complete monopoly over the distribution of recorded music. The enterprise is conducted with total disregard for innocent individuals. Dead people have been sued. Children have been sued. People without computers have been sued. As a senior RIAA spokeswoman explained: “When you fish with a net, you are going to catch a few dolphins”. By their own early admission, they were knowingly engaged in a “driftnet fishing” operation and “innocent dolphins” were the collateral damage in their “nets”.

Nationwide Conspiracy of Crime

1.2 In 2003 and before, the Big 4 recording companies conspired with the enforcement/lobbying arm of the music cartel -- the RIAA -- and MediaSentry to devise an investigation scheme that was both illegal and seriously flawed. The scheme was based on secret private investigations by unlicensed, unregistered and uncertified private investigators. These private investigators claim to have illegally entered the hard drives of tens of thousands of private American citizens to look for music recordings stored there. This personal invasion is a crime in virtually every state in the country. If music was “discovered” through this illegal process, the private investigators would then sell the identity of the computers’ internet protocol address to the RIAA and the Big 4 record companies.
Second Amended Complaint*

* Document published online at Internet Law & Regulation

Commentary & discussion:
Associated Press (Via CBS News)
Concurring Opinions (3/16)
University of Pittsburgh School of Law Jurist
E-Commerce Times (3/17)
Blogger News Network
Dow Jones MarketWatch


Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property


Jadeic said...

This is a hefty submission weighing in at 109 pages but includes much, I assume legally necessary, duplication under each of the Claims For Relief sections.

It is well worth a reread if only to remind yourself of what a complete and utter balls up the RIAA have made of this case.

Whether Tanya eventually prevails in her pursuit of a case action is in the lap of the gods / US Jurisprudence [on past experience they can amount to the same thing] but there is no doubt she deserves her day in court and without a shadow of a doubt deserves frank disclosure from the RIAA during discovery.

I try now not to get too excited about these really big cases but 'hot diggety dog' the saliva glands are working overtime tonight.


Anonymous said...

"Ms. Andersen remains understandably offended and outraged by Defendants conduct. She has no interest in the violent, profane, misogynistic, and racist music that the RIAA and its controlled member companies monopolize. "

Ha! Now that is a great quote.

Quite an indictment. I'd you'd have to work very, very hard as a judge to find a way to ignore the damning and highly substantiated allegations in the complaint.

Rick Boatright said...

Looks like a)rock or b)hard place.

Either they _did_ consipire to invade her privacy an illegally investigate her computer without permission by an unlicensed investigator and then based a (now poisened) lawsuit on that illegal investigation


They knew damned good and well that they never investigated her computer, that her computer wasn't shared and there was no basis for sueing her and they did it anyway, and are engaged in a sham.

I know, I know, the law isn't that simple, but it looks like that leaves them with no where to dodge to.

StephenH said...

You go Tanya! I hope you prevail in this case. If this goes through, I beleive it could significantly change or end RIAA's lawsuit campaign against consumers. The fact that MediaSentry is unlicensed is very telling, and the fact that IP address logs don't indentify people which leads to innocent victims is also makes their investigations flawed.

Anonymous said...

Their class definition is patently invalid -- a failsafe class.

- Clerk_9

Reluctant Raconteur said...

I hope that she can afford to follow through on this to the end.

The RIAA's first response is to try to get everything thrown out, mainly because they were just protecting their rights.

If that doesn't work, they will submit spurious and marginally relevant information in response for documents and depositions. No doubt the privilege claim (their version of the 5th)will be a standard claim.

If she finally gets past that point, everything will be under seal.

Her success will largely depend on the judges ability to motivate the RIAA to be responsive and to see through the novel legal theories that they are known for using.

I wish her the best and think she has some legitimate grievances, but nothing that the RIAA has done so far indicates that they will cooperate in the least. Their strategy will be centered around outlasting her ability to keep the case going.

Anonymous said...

I have not yet finished reading the brief, but one thing that really impresses me is
that Ms. Anderson was a case manager for the DoJ. What was the RIAA thinking of taking her on?

I don't know precisely what a case manager does ( well--generally-- a case manager manges cases--duh ), but even if you do not need to be a lawyer or have any knowledge of the law, after a while I suspect you will have as much practical knowledge of the law as many lawyers.

Obviously it is too soon yet to actually ask for stays in other cases, but can we expect such requests to be made down the line.

I understand that most people sued would rather get it over with, but will that be the case here? I can't help but think that stays granted while the RIAA's investigative techniques are brought to light are likely to make the RIAA more uneasy.

Anonymous said...

Failsafe class, clerk_9? I don't think so. The case addresses the RIAA's "campaign of terror", which rises above even the horrible things that they've done to one particular innocent person.


Reluctant Raconteur said...

I think that getting class status is one of the keys to the longevity of the case. Given the number of shady things the RIAA has done in this campaign, I doubt that they will be exonerated of all charges, even if the most damaging ones don't stand.

As a class suit, the payoff will be much greater, increasing the chance that Andersen can recoup her expenses. It also encourages the RIAA to settle.

If they fail to get class status, I expect that the RIAA will just try to stall until they run out of money.

Anonymous said...

Much of the strength of the allegations set forth in the complaint come from two easily summed aspects of the persecution of Ms. Anderson.

The first would be the false statements in the RIAA demand letter claiming the RIAA had already secured all evidence needed to prevail at trial--a claim that was demonstrably false or they would never have needed discovery!

Second was the undisputed use of an unlicensed investigator--neither the RIAA or Media Sentry have ever claimed the Media Sentry was a licensed investigator, AFAIK, instead they claim that MS doesn't need a license because it was accessing "publicly available information" that anyone can access, er if you spend thousands of man hours develop a proprietary on-line computer hacking system. However, Oregon's Private investigator's licensing requirements make it clear that it is the **investigation** aspect that requires licensing, not the source of the materials used for the investigation:



703.401 Definitions. As used in ORS 703.401 to 703.490, 703.993 and 703.995, unless the context otherwise requires:

(1) “Client” means a person who engages an investigator, firm, partnership, corporation or other entity for the purpose of conducting lawful activity on the person’s behalf.

(2) “Investigator” means a person who is a licensed investigator under ORS 703.430 and who engages in the business of obtaining or furnishing, or who solicits or accepts employment to obtain or furnish, information about:

(a) Crimes or wrongs done or threatened against the United States or any state or territory of the United States;

(b) The identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activities, movements, whereabouts, affiliations, associations, transactions, acts, reputation or character of any person;

(c) The location, disposition or recovery of lost or stolen property;

(d) The cause of or responsibility for fires, libels, losses, accidents, damages or injuries to persons or property; or

(e) Evidence to be used before any court, board, officer, referee, arbitrator or investigation committee. [1997 c.870 §1; 2001 c.838 §1; 2005 c.613 §9]

703.405 License requirement. A person may not act as an investigator or represent that the person is an investigator unless that person is licensed under ORS 703.430. [1997 c.870 §2; 2001 c.838 §2]

703.406 [1989 c.1055 §§2,3,7(2); 1995 c.386 §11; renumbered 8.435 in 1995]

703.407 Expert witness exception. The licensing requirement of ORS 703.405 does not apply to a person while the person is:

(1) Providing testimony in a court as an expert under ORS 40.410; or

(2) Conducting investigations or reviews or engaging in other activities in preparation for providing testimony in a court as an expert under ORS 40.410. [2003 c.687 §14; 2005 c.613 §10]

703.993 Criminal penalties for investigators.
(2) A person commits a Class B misdemeanor if the person knowingly practices as an investigator without a license as required by ORS 703.405."


{emphasis added, formatting changed from the original due to the Blogger comment engine, omissions indicated by ellipsis}

Note that the RIAA are likely estopped from weaseling out of the licensing requirement claiming Media Sentry is an expert witness since they have specifically--and vehemently--claimed they are only a "fact witness" to avoid discovery. deposition and cross examination. And even if they wanted to claim MS is an expert they couldn't (except, perhaps, in certain highly permissive courts *cough*) as MS doesn't meet the scientific standards for "expert" testimony anyways since their secret methods have not been reviewed by anyone, have no documented error rate, etc.

Note that depending on your reading of the statute even representing someone as an investigator may be a crime if that person is not a licensed investigator, say, for instance, in legal documents supplied to the court in bad faith:

"A person may not act as an investigator or represent that the person is an investigator unless that person is licensed"

Reluctant Raconteur said...

Shane I have noted the same thing in the Mass case; I suspect that all the laws are substantially the same. It is the activity and only the activity that determines the license requirement. You don't even have to bring the information to court. Just collect it for hire.

And I think the 'Public Information' collection rubric is a red herring. The PI is still basically a private citizen, and therefore cannot collect information that is not 'Public'. They have no subpoena powers, no right to conduct activities that would require a search warrant. So although technically true, it is also irrelevant.

Anonymous said...


The class definition is clearly failsafe, as it wraps the elements of the offense into the class definition. For example:

"Those who were subjected to illegal ... investigations,"

Failsafe, and produces an individualized inquiry. If there were no illegal investigations, then the class evaporates and the D gets res judicata over no one.... rather, the D SHOULD get res judicata over everyone if the investigations are found NOT to be illegal.

"who have not engaged in violation of
copyright laws."

Again, failsafe and produces an individualized inquiry. Both are subjective inquiries and reach merit determinations in determining class membership. That is wrong.

If the MS investigations were illegal in certain states, then define the class as those persons subjected to a Media Sentry investigation of their computers in those states and against who lawsuits were filed based on such investigations by MS. THAT is objective criteria and no individualized inquiry.